Citation Nr: 1708707
Decision Date: 03/22/17 Archive Date: 04/03/17
DOCKET NO. 11-25 395 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1. Entitlement to service connection for right knee degenerative joint disease.
2. Entitlement to service connection for left knee degenerative joint disease.
3. Entitlement to service connection for erectile dysfunction claimed as secondary to medication (bupropion and nefazodone) for the service-connected disability of post-traumatic stress disorder with dysthymic disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Christopher M. Collins, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in November 2010 and October 2011 of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Cleveland, Ohio.
FINDING OF FACT
In February 2017, the Board was notified that the Veteran died in October 2016.
CONCLUSION OF LAW
Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal at this time. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Unfortunately, the Veteran died during the pendency of the appeal. As a matter of law, appellants' claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). This appeal on the merits has become moot by virtue of the death of the Veteran and must be dismissed for lack of jurisdiction. See 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.1302 (2016).
In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106 (2016).
The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion. Such request must be filed not later than one year after the date of the appellant's death. See 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010(b) (2016). A person eligible for substitution includes "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...." 38 U.S.C.A. § 5121A (West 2014); see 38 C.F.R. § 3.1010(a) (2016). An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA office from which the claim originated (listed on the first page of this decision). 38 C.F.R. § 3.1010(b) (2016).
ORDER
The appeal is dismissed.
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A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs